MEMORANDUM The defendant, Jonathan Anderson, moves to suppress physical evidence. The defendant is charged in a twelve count indictment with the following crimes: two counts of criminal possession of a weapon in the second degree (PL §265.03-1B), two counts of criminal possession of a weapon in the second degree (PL §265.03-3), two counts of criminal possession of a weapon in the third degree (PL §265.02-1), two counts of criminal possession of a weapon in the third degree (PL §265.02-3), criminal possession of a controlled substance in the third degree (PL §220.16-1), criminal possession of a controlled substance in the fourth degree (PL §220.09-1), criminally using drug paraphernalia in the second degree (PL §220.50-2) and criminally using drug paraphernalia in the second degree (PL §220.50-3). A Mapp hearing was held before this Court on April 2, 2019 and on April 30, 2019. Police Officer Peter Giganti testified on behalf of the People. Ayisha Shelby testified on behalf of the defendant. A video recording, taken by Ms. Shelby, and which showed a substantial portion of the encounter between the police and the defendant was admitted into evidence. Based on the evidence presented at the suppression hearing, this Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT Police Officer (herein after P.O.) Peter Giganti is a two and a half year veteran of the New York City Police Department and is currently assigned to the 106th precinct. P.O. Giganti was trained in the Police Academy as to the appearance and packaging of narcotics and marijuana as well as with the paraphernalia generally associated with these substances. On August 11, 2018, P.O. Giganti was scheduled to work from 11:15 P.M. to 7:50 A.M. He was working with his partner, P.O. Michael Ginch. The officers were on routine patrol in a marked police car and were wearing their uniforms. At approximately 1:35 A.M. on August 12, 2018, the officers were driving in the vicinity of Cross Bay Boulevard and Pitkin Avenue, a commercial area in Queens County. Officer Giganti was the driver and traveling northbound on Cross Bay Boulevard in the right lane of this three lane road when he observed, from one car length away, a four-door white Mercedes-Benz sedan, traveling in the center most lane. This Court credits the officer’s testimony that when he initially observed the vehicle, he also observed what appeared to him to be “excessive or dark” window tints. After determining that he was unable to see inside of the vehicle, including any and all occupants, P.O. Giganti proceeded to turn on his turret lights and siren and instructed the vehicle to pull over at the intersection of Cross Bay Boulevard and Pitkin Boulevard. The driver of the Mercedes-Benz, identified as the defendant, complied. P.O. Giganti exited his vehicle and approached the driver’s side window as his partner approached the passenger side. The driver’s side window was down when P.O. Giganti approached. The defendant complied with the officer’s instruction to roll down the other windows. The defendant was the only occupant of the vehicle. As the defendant retrieved his registration and license, the officer smelled a strong odor of what he believed to be marijuana emanating from the vehicle. This Court credits the officer’s testimony that based on his training and experience he recognized the smell as marijuana. Based on this odor, P.O. Giganti surmised that the smell was either the product of burning marijuana or from a large quantity of marijuana inside of the vehicle. Then, according to P.O. Giganti, using his flashlight, and while leaning into the vehicle to speak with the defendant, he observed what appeared to him to be “small articles or small pieces of what looked like a vegetative or green leafy substance sprinkled on the floor of the driver’s side mat” somewhere near the defendant’s feet. According to P.O. Giganti he was able to recognize these”crumbs”, which he claims were approximately a dozen pieces, as marijuana based on his experience as a police officer and because the green vegetative material stood out to him in contrast to the black floor car mat. According to P.O. Giganti the crumbs or “shake” were too small to pick up but not too small to see. Thus, this alleged marijuana was never vouchered or tested. Furthermore, no photographs were taken of this allege marijuana. P.O. Giganti also never included any information about the alleged marijuana crumbs in any police report prepared by him. This Court does not find this testimony regarding the marijuana crumbs to be credible. To put it another way, what crumbles is his credibility as to this central issue. P.O. Giganti then instructed the defendant to step out of the vehicle and he complied. The defendant was told to place his hands on the roof of the Mercedes-Benz, which he did, and was patted down by the officer. P.O. Giganti did not recover any contraband from the defendant’s person. The defendant, who was uncuffed at this time, was then told to go to the rear of the vehicle with P.O. Ginch and the defendant complied. P.O. Giganti then entered the defendant’s vehicle. P.O. Giganti extensively searched the black colored interior of the Mercedes-Benz, beginning with the driver’s side. He searched under the driver seat as well as underneath all of the passenger seats of the vehicle, the center console area and the cup holders. The officer found no contraband inside of the passenger compartment of the vehicle. According to P.O. Giganti at this point, he determined that the marijuana odor appeared to be stronger in the rear of the vehicle towards the trunk. Since there was nothing found inside of the vehicle, the defendant was allowed to return to the driver’s seat of the car. However, the defendant could not leave as the officer was in possession of the key fob that was removed from the center console of the defendant’s vehicle by the officer. P.O. Giganti then popped open the trunk and observed what appeared to be a variety of items thrown about including an unspecified number of laundry bags, plastic bags and a backpack. P.O. Giganti then proceeded to extensively search the trunk. He began by grabbing a black plastic bag located to the far left of the trunk. He opened the top of this bag and observed what appeared to be empty purple and gray capsules similar to test tubes. Based on P.O. Giganti’s training and experience, he concluded that these capsules were drug paraphernalia used to package crack cocaine. P.O. Giganti later determined that there was approximately 500 empty capsules. Continuing his search of the trunk, P.O. Giganti opened a black Calvin Klein backpack which he described as having “a heavy feel to it” when he picked up the bag. He then squeezed the bag and felt the butt of a firearm in the main compartment of the backpack. P.O. Giganti then opened the backpack and saw a black semi-automatic handgun laying inside. Without removing the weapon, as it needed to be processed by the Evidence Collection Team (hereinafter ECT), the officer then closed the trunk of the vehicle and asked the defendant to exit. The defendant was then placed in handcuffs by P.O. Ginch. There is no evidence before this Court that the defendant consented to the search of any part of his vehicle. P.O. Giganti then noticed another vehicle pulling up near the defendant’s car. The officer observed a small crowd of approximately five or six people gathering nearby. A number of unidentified persons in the crowd appeared to record the officers with their cellular phones. Several persons also began yelling at the police officers, including making statements such as, “we’re going to have your badge” and “you’re searching his car illegally”. P.O. Giganti heard his fellow officers tell the crowd in sum and substance that while they were permitted to record, they must do so at a safe distance. By this time there were approximately three/ four officers on the scene. The defendant and his vehicle were then removed from the location to the 106th precinct. The defendant was taken in a police car by unidentified police officers while P.O. Ginch drove the Mercedes-Benz. ECT processed the aforementioned firearm at the 106 precinct police parking lot. P.O. Giganti then proceeded to complete his search of the vehicle’s trunk. P.O. Giganti returned to searching the trunk of car. Inside of a black backpack he opened a smaller compartment. In there, he retrieved a black sandwich bag containing a clear glass vial of a clear liquid of what appeared to him to be liquid Fentanyl. He also found inside of the backpack, five plastic vials containing a white powdery substance which appeared to be cocaine. The officer also recovered yet another bag which contained a box of clear sandwich baggies as well as a golf ball sized mass of what appeared to be crack cocaine. He also recovered a razor blade inside of a baggie which appeared to have white residue or crack cocaine on it. Inside of the top corner of the trunk, P.O. Giganti recovered a black ceramic plate and a scale both appearing to have white residue or crack cocaine on them. After sorting and searching the trunk from left to right and front to back, including clothing, boots and shoeboxes, the officer then recovered plastic gloves and a white ceramic plate. P.O. Giganti then removed all of the aforementioned items and took them inside of the precinct for the purpose of vouchering them as arrest evidence. P.O. Giganti began by vouchering personal items found in the trunk for safekeeping, such as pants, shirts, t-shirts, boots and shoeboxes. As the officer removed boots from a shoebox, he observed a smaller box that was approximately one foot long by six inches wide and an inch high. Based on his training and experience, he determined this was a firearm box and opened it. Inside, he recovered a Taurus .357 magnum revolver firearm which had the serial numbers removed. The box also contained ammunition. Upon this discovery, ECT was contacted again. While at the precinct, and after all of the above mentioned property was recovered and processed, P.O. Giganti proceeded to use a window tint meter to conduct a further examination of the windows of the Mercedes-Benz. Although the police department provides a tint meter reader, P.O. Giganti used his personal meter which he purchased less than a year before the incident in question. According to P.O. Giganti, the meter has a display which is approximately three inches long with a slit down the middle which is used to slide over a window. Using this equipment, the officer rolled down the driver’s side front and rear windows approximately half way down. The meter read that transparency of the front driver’s windows were at approximately 44 percent. The transparency of the rear driver’s window was at approximately 6 percent, far below the 70 percent transparency requirement of New York State Vehicle and Traffic Law. P.O. Giganti recorded notes of the meter’s findings in his memo book as the meter equipment did not store, record or print out any data. The officer did not include the results of the meter’s findings in any additional police paperwork. Ayisha Shelby is a clerk for the United States Post Office, and a resident of New York County. On August 12, 2018, at approximately 1:50 A.M., she was a patron at a local bar named “CJ’s” located on Cross Bay Boulevard in Queens County when she stepped outside of the location to smoke a cigarette. According to Ms. Shelby, once outside she observed the vehicle in question being pulled over by the police and witnessed the entire encounter from beginning to end. According to Ms. Shelby, after the stop of the Mercedes-Benz she observed approximately three police officers walk up to the car and speak to the black male who was driving. Upon making this observation, she retrieved her cellular phone and began recording. The video recorded by Ms. Shelby is taken approximately a car length away from the defendant’s vehicle, and taken from the vantage point of the passenger side. It does not show any part of the driver’s side of the vehicle and begins after the defendant’s car is already stopped and the defendant is standing at the rear of the vehicle with police officers. Identifying the defendant as the driver of the vehicle, and who she referred to as “John”, Ms. Shelby claims that she does not know the defendant and that he is a stranger to her. However, on the night of the incident, Ms. Shelby, who had been drinking (according to her she only had two drinks at the time of the recording), clearly and repeatedly lied to the police officers on the scene, claiming that the defendant was her brother-in-law, that her husband was a police officer and that she would inform him, in sum and substance, that his brother was being harassed. In reviewing the twenty five minutes and twenty seconds video, the windows of the defendant’s vehicle appear noticeably dark. P.O. Giganti is also observed entering and searching the interior of the vehicle using his flashlight. The video shows that the defendant is allowed to return to the driver’s seat of his vehicle two times for several minutes before a search is conducted of the trunk. The defendant appears calm and cooperative throughout the encounter. This Court also notes, that as depicted by the video, despite the rudeness and obnoxiousness of some of the crowd, the police officers appeared patient and professional. After careful consideration of the arguments in the motion papers submitted by the parties, the court record, a review of the admitted evidence and the appropriate statutory and case precedent, this Court finds as follows: CONCLUSIONS OF LAW On a motion to suppress physical evidence, the People bear the initial burden of demonstrating the legality of the police conduct. If the People are successful, the burden shifts to the defendant to show the illegality of such conduct. People v. Berrios, 28 NY2d 361 (1971). Accordingly, this Court must determine whether or not the police action herein was justified from the inception. This Court determines that the initial stop of the defendant’s vehicle was lawful pursuant to violation of the New York Vehicle and Traffic Law §375[12-a](b) based on P.O. Giganti’s observation of what appeared to be the excessively tinted windows of defendant’s vehicle which prevented the officer from seeing inside. Indeed, the officer’s initial observation was later confirmed by his tint meter which determined that the transparency of all of the windows to the defendant’s vehicle were far below the 70 percent light transmittance required by law. See People v. Bacquie, 154 AD3d 648, 649, (2nd Dep’t 2017) (holding that a stop for illegally tinted windows was lawful where the officer observed the defendant’s car from a distance of a couple of feet and saw that the car’s window tints were dark, that it was hard for him to see inside the car, and that the officer knew that anything under 70 percent light transmittance was a summonsable offense). Likewise, upon smelling marijuana, the removal of the defendant and subsequent limited protective pat down of him for the officers’ safety was also lawful especially under the facts herein where no contraband was recovered as a result of such frisk. With respect to the search of the car, under the “automobile exception”, law enforcement are not required to obtain a search warrant to search a vehicle if there is probable cause to believe that contraband or evidence will be found inside. People v. Galak, 81 NY2d 463(1993). In this case, having properly stopped the defendant’s vehicle, and smelling an odor of marijuana, the officer was permitted to search the interior of the vehicle for contraband. See People v. Ricks, 145 AD3d 1610(4th Dep’t 2016), leave to appeal denied, 29 NY3d 1000 (2017). See also People v. Lee, 143 AD3d 626 (1st Dep’t 2016), leave to appeal granted, 28 NY3d 1152, 2017) and aff’d, 29 NY3d 1119(2017). However, having determined that it is not credible that marijuana was found in the interior compartment of the vehicle, this Court must determine whether or not P.O. Giganti had probable cause to search the trunk and containers therein. In seeking guidance on this issue, this Court has reviewed a number of cases including People v. Romeo, 15 AD3d 420, 421(2nd Dep’t 2005; People v. Ramos, 122 AD3d 462 (1st Dept 2014); People v. Hughes, 68 AD3d 894 (2nd Dep’t 2009) and People v. Morgan, 10 AD3d 369 (2nd Dep’t 2004). In Romeo, after a valid traffic stop where the search of the passenger interior of the vehicle found nothing, the Second Department determined that officers did not have probable cause to search the trunk of a vehicle or the contents of a closed duffel bag located therein despite the recovery of marijuana on defendant’s person. See Romeo at 420. Likewise, in Ramos, the First Department determined that police were not justified in searching the trunk of defendant’s vehicle, as the claim of burnt or burning marijuana was ambiguous at best, there was no evidence that the defendant appeared under the influence and the glassine envelope recovered from the front passenger side of the vehicle was empty. The Court reasoned that because the police did not have a “confirming fact” such as an admission or the recovery of marijuana inside of the vehicle, they lacked probable cause to search the truck and as such the Ecstasy recovered should be suppressed. See Ramos at 466. In contrast, in Hughes, the Second Department determined that a state trooper’s search of a vehicle, including the trunk, was lawful based on the trooper’s detection of a strong odor of burnt marijuana inside of the vehicle, observation of what appeared marijuana vegetation on the defendant’s shirt and the defendant’s statement admitting that he had smoked marijuana earlier. Hughes at 684. Similarly, in Morgan, the Second Department concluded that the strong odor of marijuana emanating from the defendant’s car, observation of the remains of marijuana cigarettes in an ashtray, and an admission made by the defendant’s passenger that they had been smoking and drinking provided the officer with probable cause to conduct a warrantless search of the vehicle, including the trunk. See Morgan at 369 Under the facts herein, this Court determines that law enforcement did not have probable cause to search the trunk or the locked bags or containers therein. As previously noted, this Court determines that P.O. Giganti’s testimony regarding his alleged observation of twelve marijuana crumbs with a flashlight near the driver’s feet on the black mat at 1:30 A.M. strains credibility, is contrary to common experience, and appears to be tailored to overcome constitutional objections. See People v. Dunbar, 104 AD3d 198 (2014); See also People v. Rutledge, 21 AD3d 1125 (2005). Without this discredited portion of the officer’s testimony all that remains is a valid traffic stop, a smell of marijuana and an interior which contained no evidence of contraband. Like Romeo and Ramos, there is no “confirming fact”. Thus while the smell of marijuana allowed the officer to search the interior compartment of the vehicle for contraband, having found nothing, he did not probable cause to search the trunk or the locked bags and containers therein especially where there was no evidence before this Court that the trunk was accessible from the interior of the vehicle. Further, and notably, no marijuana was recovered from anywhere. The People cite People v. Edwards, 14 NY3d 741 (2010) as controlling on the issues to be decided herein. In Edwards, after a stop for a traffic infraction the officer observed what appeared to be cocaine residue on the hand of an extremely nervous defendant and he was arrested. The Court of Appeals determined that the defendant was not unreasonably detained after the traffic stop and the evidence recovered which included the crack cocaine in the defendant’s pocket and a half pound of the drug in the car, were properly seized. Since Edwards is clearly distinguishable from the facts herein, this Court concludes that the People’s reliance on this case is misplaced and inappropriate. In sum, based on the tainted testimony of P.O. Giganti and the lack of probable cause, this Court concludes that the People have failed to show the lawfulness of the police conduct as to the search of the trunk and locked bags and containers therein. Accordingly, the defendant’s motion to suppress all physical evidence recovered from the trunk of his vehicle is granted. The foregoing constitutes the order, opinion and decision of this Court.
